Sivut kuvina

simple and plain confession, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession, out of tenderness to the life of the subject, and will generally advise the prisoner to retract it and plead to the indictment.f



But there is another species of confession, which we read much of in our ancient books, of a far more complicated kind, [330] which is called approvement. And that is when a person in

dicted of treason or felony, and arraigned for the same, doth confess the fact before plea pleaded, and appeals or accuses others, his accomplices, of the same crime, in order to obtain his pardon. In this case he is called an approver or prover, probator, and the party appealed or accused is called the appellee. Such approvement can only be in capital offenses, and it is, as it were, equivalent to an indictment, since the appellee is equally called upon to answer it; and if he hath no reasonable and legal exceptions to make to the person of the approver, which, indeed, are very numerous, he must put himself upon his trial, either by battel, or by the country, and if vanquished or found guilty, must suffer the judgment of the law, and the approver shall have his pardon ex debito justitia. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver shall receive judgment to be hanged, upon his own confession of the indictment; for the condition of his pardon has failed, viz., the convicting of some other person, and, therefore, his conviction remains absolute.

But it is purely in the discretion of the court to permit the approver thus to appeal or not; and, in fact, this course of admitting approvements hath been long disused; for the truth was, as Sir Matthew Hale observes, that more mischief hath arisen to good men by these kind of approvements, upon false and malicious accusations of desperate villains, than benefit to the public by the discovery and conviction of real offenders. And, therefore, in the times when such appeals were more frequently admitted, great strictness and nicety were held therein;s though, since their discontinuance, the doctrine of approvements is become a matter of more curiosity than use. I shall only observe, that all the good, whatever it be, that can be expected from this method of approvement is fully provided for in the cases of coining, robbery, burglary, house-breaking, horse-stealing, and larceny to the value of five shillings from shops, ware[331] houses, stables, and coach-houses, by statutes 4 & 5 W. & M.,

c. 8; 6 & 7 W. III., c. 17; 10 & 11 W. III., c. 23; and 5 Ann., c. 31, which enact, that if any such offender, being out of prison, shall discover two or more persons who have committed the like offenses, so as they may be convicted thereof, he shall, in

2 Hal., P. C., ch. 29; 2 Hawk., P. C., ch. 24.

f 2 Hal., P. C., 225.


case of burglary or house-breaking, receive a reward of £40,12 and, in general, be entitled to a pardon of all capital offenses, excepting only murder and treason, and of them also, in the case of coining. And if any such person, having feloniously stolen any lead, iron, or other metals, shall discover and convict two offenders of having illegally bought or received the same, he shall, by virtue of statute 29 Geo. II., c. 30, be pardoned for all such felonies committed before such discovery." It hath also been usual for the justices of the peace, by whom any persons charged with felony are committed to jail, to admit some one of their accomplices to become a witness (or, as it is generally termed, king's evidence) against his fellows, upon an implied confidence, which the judges of jail delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magistrate, and afterward gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offense of the same degree.i1

The pardon for discovering offenses against the Coinage Act of 15 Geo. II., c. 28, extends only to all such offenses.

(12) This reward is now abolished. See ante, p. 295, note (18).—[CHITTY.]

(13) These statutes were all repealed by the 7 Geo. IV., c. 64, and 7 & 8 Geo. IV., c. 27.

(14) In the case of Mrs. Rudd, in which this subject is clearly and ably explained by Lord Mansfield, and again by Mr. Justice Aston, in delivering the opinion of all the judges (Cowp., 331), it is laid down that no authority is given to a justice of peace to pardon an offender, and to tell him he shall be a witness, at all events, against others. But where the evidence appears insufficient to convict two or more without the testimony of one of them, the magistrate may encourage a hope that he who will behave fairly and disclose the whole truth, and bring the others to justice, shall himself escape punishment. But this discretionary power exercised by the justices of peace is founded in practice only, and can not control the authority of the court of jail delivery, and exempt, at all events, the accomplice from being prosecuted. A motion is always made to the judge for leave to admit an accomplice to be a witness, and unless he should see some particular reason for a contrary conduct, he will prefer the one to whom this encouragement has been given by the justice of the peace. This

The King v. Rudd, Mich. 16 Geo. III., on a case reserved from the Old Bailey, Oct., 1775.

admission to be a witness amounts to a promise of a recommendation to mercy, upon condition that the accomplice make a full and fair disclosure of all the circumstances of the crime for which the other prisoners are tried, and in which he has been concerned in concert with them. Upon failure on his part with this condition, he forfeits all claim to protection. And upon a trial some years ago at York, before Mr. Justice Buller, the accomplice, who was admitted a witness, denied in his evidence all that he had before confessed, upon which the prisoner was acquitted; but the judge ordered an indictment to be preferred against this accomplice for the same crime, and upon his previous confession, and other circumstances, he was convicted and executed. And if the jury were satisfied with his guilt, there can be no question with regard both to the law and justice of the case.

The learned commentator says that the accomplice thus admitted a witness shall not afterward be prosecuted for that or any other previous offense of the same degree. Mrs. Rudd's case does not warrant the extent of that position; for the decision of that case, and what is advanced by Mr. J. Aston (Cowp., 341), and, as the editor conceives, the reason and principles of this doctrine, will not extend the claim of the witness to mercy beyond those offenses in which

he has been connected with the prison- information of an accomplice, taken acers, and concerning which he has pre- cording to the statutes 1 & 2 Ph. & M., viously undergone an examination. And c. 13, and 2 & 3 Ph. & M., c. 10, may with regard to these crimes he may be be read against a prisoner upon proof cross-examined by the counsel for the of the death of the accomplice; but it prisoner, but, of course, he may refuse can have no effect unless it is corroboto criminate himself of other charges, rated in the same manner as his living against which that prosecution affords testimony. Westbeer's case, Leach, 14. him no protection. The evidence and [CHRISTIAN.] 382





We are now to consider the plea of the prisoner, or defens- SIXTH.
ive matter alleged by him on his arraignment, if he does not
confess or stand mute. This is either, 1. A plea to the juris-
diction; 2. A demurrer; 3. A plea in abatement; 4. A special
plea in bar; or, 5. The general issue.

Formerly there was another plea, now abrogated, that of sanctuary, which is, however, necessary to be lightly touched upon, as it may give some light to many parts of our ancient law, it being introduced and continued during the superstitious veneration that was paid to consecrated ground in the times of popery. First, then, it is to be observed, that if a person accused of any crime (except treason, wherein the crown, and sacrilege, wherein the Church was too nearly concerned) had fled to any church or church-yard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offense, and thereupon took the oath in that case provided, viz., that he abjured the realm, and would depart from thence forthwith at the port that should be assigned him, and would never return without leave from the king, he by this means saved his life, if he observed the conditions of the oath, by going with a cross in his hand, and with all convenient speed, to the port assigned, and embarking. For if, during this forty days' privilege of sanctuary, or in his road to the sea-side, he was apprehended and arraign- [333] ed in any court for this felony, he might plead the privilege of sanctuary, and had a right to be remanded, if taken out against his will. But by this abjuration his blood was attainted, and he forfeited all his goods and chattels. The immunity of these privileged places was very much abridged by the statutes 27 Hen. VIII., c. 19, and 32 Hen. VIII., c. 12. And now, by the statute 21 Jac. I., c. 28, all privilege of sanctuary, and abjuration consequent thereupon, is utterly taken away and abolished.

efit of clergy.

Formerly, also, the benefit of clergy used to be pleaded be- Plea of benfore trial or conviction, and was called a declinatory plea, which was the name also given to that of sanctuary.c But as the prisoner upon a trial has a chance to be acquitted and totally discharged, and, if convicted of a clergyable fel

a Mirr., c. 1, § 13; 2 Hawk., P. C.,


Plea of


b2 Hawk., P. C., 52.
2 Hal., P. C., 236.


ony, is entitled equally to his clergy after as before conviction, this course is extremely disadvantageous; and, therefore, the benefit of clergy is now very rarely pleaded; but, if found requisite, is prayed by the convict before judgment is passed upon him.'

I proceed, therefore, to the five species of pleas before mentioned.



I. A plea to the jurisdiction is where an indictment is taken. before a court that hath no cognizance of the offense; as if a man be indicted for a rape at the sheriff's tourn, or for treason at the quarter sessions; in these or similar cases he may except to the jurisdiction of the court, without answering at all to the crime alleged.d"

II. A demurrer to the indictment. This is incident to criminal cases as well as civil, when the fact as alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man be indicted for feloniously stealing a greyhound, which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass, to steal it: in this case the party indicted may demur [334] to the indictment, denying it to be felony, though he confesses the act of taking it. Some have helde that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution as if convicted by verdict. But this is denied by others, who hold that in such case he shall be directed and received to plead the general issue, not guilty, after a demurrer determined against him; which appears the more reasonable, because it is clear that if the prisoner freely discovers the fact in court, and refers it to the opinion of the

f 2 Hawk., P. C., 334.

d 2 Hal., P. C., 256.


Ibid., 257.

(1) See post, ch. xxviii.; and the stat. jurisdiction, apparent on the face of the 7 & 8 Geo. IV., c. 28, s. 6. proceedings, may be taken advantage of on demurrer. 1 T. R., 316.-[CHITTY.]

(2) An affidavit of the truth of the plea must be made.*

In some cases the defendant may take advantage of the want of jurisdiction under the plea of not guilty; as where a statute directs that the offense shall be tried only within a certain boundary, or by certain magistrates, 1 East, 352; or where the objection proves that no court in England can try the indictment, 6 East, 583. And an objection to the

(3) But see now the 7 & 8 Geo. IV., c. 29, s. 31, 32 (ante, p. 236, n. (20)), as to the offense of dog-stealing.

(4) This rule holds good in indictments for felonies, but not for misdemeanors. 8 East, 112.-[CHITTY.] See, also, 3 B. & Cr., 502, 612; 1 C. & Mar., 181, 299.

* An affidavit of the truth of a plea in abatement, or other dilatory plea to an indictment, is required in New York.-(2 R. S., 731, § 71.)

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